Over the past week, several cricket enthusiasts in the country have been arrested for celebrating Pakistan’s win over India in the final of the ICC Champions Trophy. At least 15 people in Madhya Pradesh, five in Rajasthan, 23 in Kerala and two in Karnataka were booked for sedition because they allegedly burst firecrackers and shouted slogans. The Supreme Court has clearly defined sedition as an act that constitutes a threat to the Government of India.

Madhav Khosla, the BR Ambedkar Academic Fellow at Columbia Law School, and author of The Oxford Handbook of the Indian Constitution, talks to Nikita Puri to find out if such unbridled use of the sedition charge is counterproductive to society’s welfare. Khosla will soon be a Junior Fellow at the Harvard Society of Fellows.

Edited excerpts:

Is supporting the Indian cricket team against Pakistan really a test of patriotism? Is it a healthy approach to be criminalising a person’s choice of sports team?

It’s neither clear what a test of patriotism would be nor why such a test should be a matter of criminal law.

Such an approach, of course, isn’t healthy — it will neither produce patriotism (not that its production should be the purpose of coercive legal action) nor will it increase anyone’s faith in the rule of law. One might add that it will also do little to increase anyone’s interest in cricket.

Every time sedition is mentioned, the landmark 1995 judgment in Balwant Singh & Another vs State of Punjab is duly quoted. Singh and his friend were both accused of shouting pro-Khalistan slogans, and the Supreme Court ruled that the raising of lonesome slogans didn’t constitute a threat to the Government of India. Why do we then keep seeing a repeat of such charges?

There is no doubt that the cases we hear about fly in the face of Supreme Court jurisprudence. As free speech scholars have observed, the court’s doctrine may suffer from some lack of clarity on select issues. But the doctrine is very clear on the high threshold that is required for a case of sedition to be made out. The behaviour and expression that we see being charged is nowhere in the ballpark of the court’s definition of sedition.

The reason that these charges are being repeated may well be, as Lawrence Liang (a legal researcher and law professor) once noted, the trouble that is caused to one by the process even if no conviction can ultimately be secured. That is profoundly disturbing, of course, because authorities like the police are not merely part of that process, they are meant to safeguard and protect it.

Slapping charges of sedition has become a common practice. Does such liberal use of a serious charge trivialise the law?

It most certainly does. The danger here is not simply that legal and legitimate forms of behaviour and expression will be attacked and curbed. The further danger is that the law, and thereby the state, will itself suffer because it will suffer a loss in its legitimacy.

One of the aims of criminal punishment, as Emile Durkheim (a French sociologist) underlined, is to further social solidarity. It makes us speak in one voice and collaborate against public wrongs. It is never about individual crimes. But Durkheim recognised that once criminal punishment loses this value, for example through excessive criminalisation, it becomes counterproductive to social solidarity. The state that engages in this does not enable order or unity; it risks both. The use of the law in this fashion is only making the law lose.

In India, the sedition law was introduced during colonial times to be used against freedom fighters such as Bal Gangadhar Tilak, Mahatma Gandhi, Bhagat Singh and others. What is its role in contemporary India?

I am not the biggest supporter of analogies between colonial and post-colonial India. Regardless of whether or not they are accurate, they are not always the productive or useful. It is always difficult to speak of political attitudes in a way that is independent of political institutions, and vice versa. But four points may be made about the persistence of the law of sedition in independent India. First, whatever the Supreme Court’s jurisprudence on sedition may say, the fact is that the law is now operating in ways that contravene that jurisprudence. By revealing its capacity for unfair application, this fact should invite fresh challenges to the validity of the law on the very basis of what exists on the books.

Second, despite all the Supreme Court safeguards that exist, it is hard to accept the place of such laws in any liberal society. The very existence of such laws, regardless of their use, will always keep India at some distance from being a genuine home for modern liberty. Third, one should add that this is hardly a problem with one government or the next. As reported cases on a range of civil liberties matters in Karnataka show, laws such as these are used across the political spectrum, their repeal is not publicly supported by a single major political party, and they are deployed in the serve of a range of partisan purposes. Parties that claim to be upholders of liberty should be tested by their willingness to publicly condemn and push for the repeal of such laws.

Finally, we should all wonder whether India is so weak and so fragile that it cannot accommodate dissent and objection. Are its foundations so delicate that it feels endangered even in instances outside of armed rebellions? The question that needs to be asked of the political supporters of such laws is not why they are confident of the importance of the law on sedition. It is instead why they are lacking in such confidence about India.